I. Introduction: Access rights in the jurisdiction

Consistent with the Georgia’s “strong public policy . . . in favor of open government,” Richmond Cty. Hosp. Auth. v. Se. Newspapers Corp., 252 Ga. 19, 20 (1984), the State’s courts have long recognized and enforced a public right of access to judicial records and proceedings, whether asserted by or on behalf of litigation parties, the media or the general public.

A. The roots of access rights

While recognizing that the public right of access to judicial records and proceedings is rooted in the First Amendment, see, e.g., Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 581 (1996) (“We must do our very best to hold fast to the values embodied by the First Amendment even in extreme and painful cases, because we cannot suspend it and remain all that we strive to be.”), the Georgia Supreme Court has repeatedly stressed the critical importance of public access to the health and integrity of the state’s judicial system, oft noting, as in R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578 (1982), that “Georgia law, as we perceive it, regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law.” See id. at 579 (“A Georgia trial court judge must approach these issues possessed of less discretion than his federal counterpart because our constitution commands that open hearings are the nearly absolute rule and closed hearings the very rarest of exceptions.”).

In R.W. Page Corp., 249 Ga. at 576 n.1, a criminal case in which the Court protected and expounded upon the public right of access, the Court declared: “This court has sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that open courtrooms are a sine qua non of an effective and respected judicial system which, in turn, is one of the principal cornerstones of a free society.” See also State v. Brown, 293 Ga. 493, 493–94 (2013) (quotingZugar v. State, 194 Ga. 285, 289–90 (1942)) (“It is a fundamental part of our judicial system that the general public be permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted.”).

Similarly, in Atlanta Journal v. Long, 258 Ga. 410, 411 (1988), the first modern civil case in which the Court protected and expounded upon the right of public access, the Court stated: “Public access protects litigants both present and future, because justice faces its gravest threat when courts dispense it secretly. Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” See also Florida Publ’g Co. v. Morgan, 253 Ga. 467, 473 (1984) (providing for public access to juvenile proceedings) (“at English common law and in Colonial America, trials have been open to the public for reasons which, throughout history, have fostered and continue to foster a role for the judiciary appropriate to our scheme of constitutional government.”).

Georgia has set as an official state goal the facilitation of public access to court information. In a report adopted by the Georgia Judicial Council and State Bar, a judicial commission concluded that, “Courts at all levels in Georgia must promote long-term public confidence and support of the judicial system by demonstrating and practicing transparency, establishing as one of their core functions the effective provision of convenient and timely public access to court procedures, schedules, records and proceedings.” See Embracing the Courts of the Future: Final Report of the Next Generation Courts Commission at 21–22 (March 2014).

In 2018, the Georgia Supreme Court updated the state’s uniform rule on electronic access to trial courts and added a preamble reiterating that, “Open courtrooms are in indispensable element of an effective and respected judicial system. It is the policy of Georgia’s courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media who report on the proceedings to the public.” Uniform Superior Court Rule 22(A), https://www.gasupreme.us/wp-content/uploads/2018/02/USCR_22_Order-FINAL_Feb-6.pdf.

B. Overcoming a presumption of openness

In criminal cases, a motion for closure must be supported “by evidence constituting ‘clear and convincing proof’ that no means available other than closure of the hearing will serve to protect the right of the movant.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 580 (1982). Georgia law requires that a trial court actually “use,” not just “consider,” alternative means to exclude prejudicial matters, such as jury sequestration, change of venue, postponement of the trial, searching voir dire and clear and emphatic instructions to the jury, as alternatives to closure. Moreover, the court must consider reasonable alternatives sua sponte if none are raised or offered by the parties. Presley v. Georgia, 558 U.S. 209 (2010). A closure order must fully articulate the alternatives to closure and the reasons why the alternatives would not protect the movant’s rights. In Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 580 (1996) reversing the closure of a pretrial evidentiary hearing in a capital case, the Georgia Supreme Court emphasized that: “assumptions and speculation can never justify the infringement on First Amendment rights, which the closure of criminal proceedings creates.”

In civil cases, the presumption of openness may be overcome only by a showing of “clear necessity.” Atlanta Journal v. Long, 258 Ga. 410, 413 (1988). The party seeking closure of civil court records based on an assertion of privacy interests must present evidence sufficient to support specific findings of fact demonstrating how privacy interests raised by the particular facts of the case clearly outweigh the public’s right of access. “[I]t is not sufficient for the trial court to forego making findings of fact and simply state that the public’s interest in access to court records is clearly outweighed by potential harm to the parties’ privacy.” In re Atlanta Journal-Constitution, 271 Ga. 436, 438 (1999).

C. Procedural prerequisites to closure

A motion for closure of proceedings “shall receive no consideration by a trial court unless it is in writing, has been served upon the opposing party, has been filed with the clerk of the court and posted on the case docket (as notice to the press and the public) for at least one twenty-four hour period in advance of the time when the motion will be heard, and unless it alleges grounds for relief with … particularity.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 580 (1982).

With respect to court records, court rules, including, e.g., Uniform Superior Court Rule 21, set forth specific and stringent procedures that must be followed before court records may be withheld from the public. First, the sealing of court files requires the submission of a motion setting forth the legal and evidentiary grounds for the relief sought. Second, the court must conduct a hearing on the motion where all interested parties, including the public, may be heard. Third, any order sealing court documents must identify the specific parts of the court’s file to which the order applies and delineate the “nature and duration” of the limits on public access. Rule 21.1. Finally, “[a]n order limiting access shall not be granted except upon a finding that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.” Rule 21.2. See generally In re Atlanta Journal, 271 Ga. 436, 437–38 (1999). See also Wall v. Thurman, 283 Ga. 533 (2008) (holding that trial court erred in sealing case records without holding a hearing or making findings of fact regarding the balancing of public and private interests); Altman v. Altman, 301 Ga. 211, 217–18 (2017) (trial court’s conclusory findings that the transcript of in-chambers interviews of children in a divorce matter is “of a nature that [is] protected and privileged from disclosure as public record” and that there has been “good cause shown” are insufficient to support a restriction on public access to court records).

II. Procedure for asserting right of access to proceedings and records

In the event of curtailment or closure of the public right of access to proceedings and records, it has long been established that members of the public or press are entitled to intervene or to object.

A. Media standing to challenge closure

The right of the media to intervene in legal actions where newsgathering rights are burdened by court orders is well established. See, e.g., R.W. Page Corp v. Lumpkin, 249 Ga. 576, 577 (1982) (recognizing the right of the press to challenge order excluding the public and press from criminal proceedings and instituting procedure where the news media must be provided with notice and an opportunity to be heard prior to consideration of motions seeking restrictions on access to court proceedings); Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170 (2004) (holding that the media had standing to challenge a gag order entered against trial participants and witnesses); Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (finding that newspapers had standing to challenge order sealing court records).

B. Procedure for requesting access in criminal cases

Public access to Georgia criminal records and proceedings is presumed. Where access to a criminal record or proceeding has been curtailed or foreclosed, members of the press or public are entitled to intervene to request access. See, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982).

C. Procedure for requesting access in civil matters

Public access to Georgia civil records and proceedings is presumed. Where access to a civil record or proceeding has been curtailed or foreclosed, members of the press or public are entitled to intervene to request access. See, e.g., Atlanta Journal v. Long, 258 Ga. 410 (1988).

D. Obtaining review of initial court decisions

Limitations on public access to judicial proceedings may be appealed directly to the Georgia Supreme Court. See, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578 (1982) (providing for a direct appeal of order closing pretrial hearings and trial in criminal case as most effective means for protecting the right of the public and news media to be present; “Direct appeal to this court rather than a separate proceeding in the trial court – such as mandamus, prohibition, or motion to reconsider or modify a closure order – is the most judicially economical, swift, and certain means for the protection of the right of the public, hence, of the news media.”).

III. Access to criminal proceedings

A. In general

“Georgia law . . . regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law” because the Georgia Constitution “point blankly states that criminal trials shall be public.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982) (emphasis in original). In addition, “[a] Georgia trial court judge must approach these issues possessed of less discretion than [his] federal counterpart because our constitution commands that open hearings are the nearly absolute rule and closed hearings are the very rarest of exceptions.” Id.

A party seeking to close any aspect of a criminal proceeding in Georgia must: “demonstrate on the record by ‘clear and convincing proof’ that closing the hearing to the press and public is the only means by which a ‘clear and present danger’ to his right to a fair trial or other asserted right can be avoided.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 579 (1982); see alsoRockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 580–81 (1996) (“A review of the records and the superior court’s order establishes uncontrovertibly that there was no evidence adduced in this case to support the superior court’s finding that there is a ‘clear and present danger’ that [defendant] will not receive a fair trial before jurors from the changed venue county.”). Georgia law requires that a trial court actually “use,” not just “consider,” alternative means to exclude prejudicial matters, such as jury sequestration, change of venue, postponement of the trial, searching voir dire, and clear and emphatic instructions to the jury, as alternatives to closure of the proceeding. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 579–80 (1982). Moreover, the court must consider reasonable alternatives sua sponte if none are raised or offered. Presley v. Georgia, 558 U.S. 209 (2010).

A closure order must fully articulate the alternatives to closure and the reasons why the alternatives would not protect the movant’s rights. In Rockdale Citizen Publ’g Co. v. State, 266 Ga. 579, 580 (1996), the Supreme Court of Georgia made clear that the right of access to court proceedings cannot be abrogated based on a speculative showing: “assumptions and speculation can never justify the infringement on First Amendment rights, which the closure of criminal proceedings creates.” The court expressly acknowledged that “‘pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial.’” Id. at 581 (quotingNeb. Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976)); see also Florida Publ’g Co. v. Morgan, 253 Ga. 467, 471 (1984) (“[A]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.” (quotingRichmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980))).

B. Pretrial proceedings

It is well established in Georgia that the public enjoys a clear and routine right of access to pretrial criminal proceedings. The Supreme Court of Georgia has emphasized that the importance of openness in judicial proceedings applies with equal force to pretrial hearings finding that it “is often the most critical stage of a criminal proceedings,” regardless of whether such proceedings and records will bring to light potentially inadmissible evidence. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578–79 (1982) (reversing the trial court’s exclusion of the press from pretrial hearings, including hearings on motions for change of venue, individual and sequestered voir dire of prospective jurors and admissibility of certain evidence in a murder trial). See alsoPresley v. Georgia, 558 U.S. 209 (2010) (“The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”); State v. Brown, 293 Ga. 493 (2013) (quashing indictment not returned in open court).

C. Criminal trials

The public and press have a presumptive First Amendment right of access to all stages of criminal trials in Georgia, including the trial itself. SeeRockdale Citizen Publ’g Co. v. State, 266 Ga. 579 (1996); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 579 (1982) (“The criminal trial itself . . . shall be open to the press and public” and further noting “the extreme importance of the strong presumption favoring the general rule”).

IV. Access to criminal court records

The press and public’s presumptive right of access to Georgia court records is codified in court rules. See, e.g., Uniform Superior Court Rule 21 (“All court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.”).

A. In general

In Georgia, the public has a presumptive right of access to all court records and that right may be overridden only “in cases of clear necessity.” See Atlanta Journal v. Long, 258 Ga. 410, 413 (1988).

The state’s court rules provide that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].” Pursuant to the rule, a party seeking to have presumptively public court records sealed “has the burden of overcoming this presumption, by demonstrating that ‘the harm otherwise resulting to [his privacy] clearly outweighs the public interest.’” Atlanta Journal v. Long, 258 Ga. 410, 414 (1988) (quoting Uniform Superior Court Rule 21.2).

B. Arrest records

C. Dockets

Dockets are publicly available in Georgia. Georgia has no single statewide system for electronically accessing court dockets, but many courts—including the Supreme Court, the Court of Appeals and many trial courts—do provide such access online via their own website or that of an authorized private vendor.

D. Warrants, wiretaps and related materials

Once filed with the court, warrants, wiretaps, and related materials are presumptively available for public inspection. See Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (“There is a presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.”). Uniform Superior Court Rule 21 states that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].”

Depending upon the status of the investigation or prosecution, warrants and related materials may also be available from law enforcement directly under the Open Records Act. See O.C.G.A. § 50-18-72(a)(4).

E. Discovery materials

Discovery materials are presumptively open for public inspection once filed with the court. See also Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (“There is a presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.”). Uniform Superior Court Rule 21 states that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].”

F. Pretrial motions and records

It is well established in Georgia that the public enjoys a clear and routine right of access to pretrial criminal proceedings and records. R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578–79 (1982) (reversing the trial court’s exclusion of the press from pretrial hearings, including hearings on motions for change of venue, individual and sequestered voir dire of prospective jurors and admissibility of certain evidence in a murder trial); see also Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (“There is a presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.”). Uniform Superior Court Rule 21 states that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].”

G. Trial records

Uniform Superior Court Rule 21 provides that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” This includes trial records. In Kidwell v. State, 264 Ga. 427, 430 (1994), the court noted that transcripts from the trials of co-defendants are public records and just as accessible to defendants as to the State. See also Green v. Drinnon, Inc., 262 Ga. 264, 265 (1992) (holding that a tape or transcript of a judge’s remarks in open court must be made available for public inspection based on Rule 21); Undisclosed LLC v. State, 807 S.E.2d 393 (Ga. 2017) (a court reporter’s tape of proceedings may not be accessible if there is a filed transcript). See generally Munoz v. Am. Lawyer Media, L.P., 236 Ga. App. 462, 464 (1999) (“Photographic or other exhibits, and a trial record’s printed text, are equally open to public inspection”).

H. Post-trial records

Uniform Superior Court Rule 21 provides that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” This includes post-trial records.

I. Appellate records

Appellate records, like all other court records in Georgia, are presumptively open to the public. The Georgia Supreme Court and Court of Appeals make their dockets freely available online but typically limit to parties and their counsel the online availability of briefs and the record.

J. Other criminal court records issues

All criminal court records are presumptively open to the press and public. See Uniform Superior Court Rule 21 (“all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth”).

V. Access to civil proceedings

The press and public’s right of access to Georgia judicial criminal pre-trial, trial and post-trial proceedings is long established, see, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), and the Georgia Supreme Court has reiterated that open judicial proceedings in civil cases are an integral part of our democratic form of government. “Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988). See generally Munoz v. American Lawyer Media LP, 236 Ga. App. 462, 464 (1999) (“The function of a free press is just as important in civil cases as in criminal cases”).

A. In general

Consistent with the standard in criminal cases, Presley v. Georgia, 558 U.S. 209, 212–13 (2010), court closures in civil cases must be rare. The court must cite specific legal authority for closure, and the party seeking closure must demonstrate “an overriding interest that is likely to be prejudiced” if the proceeding, or portion thereof, remains open to the public. Id. Upon such a showing, the court must provide notice and opportunity to be heard to the opposing party, and must make a finding, on the record, that the proceeding can be properly closed consistent with the standard set forth in Presley. Id. Moreover, “the closure must be no broader than necessary to protect [the] interest [specified by the moving party, and] the trial court must consider reasonable alternatives to closing the proceeding.” Id.

The tradition of access to Georgia civil proceedings is reflected in Uniform Superior Court Rule 22, which provides for electronic and photographic news coverage of all judicial proceedings. See Uniform Superior Court Rule 22(A) (“Open courtrooms are an indispensable element of an effective and respected judicial system. It is the policy of Georgia’s courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media who report on the proceedings to the public.”); 22(G) (“A properly submitted request for recording should generally be approved . . . .”).

B. Pre-trial proceedings

The press and public’s right of access to pre-trial proceedings in Georgia criminal cases is long established, see, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), and the Georgia Supreme Court has reiterated likewise that open judicial proceedings in civil cases are an integral part of our democratic form of government. “Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988). See generally Munoz v. American Lawyer Media LP, 236 Ga. App. 462, 464 (1999) (“The function of a free press is just as important in civil cases as in criminal cases”).

C. Trials

The press and public’s right of access to trials in Georgia criminal cases is long established, see, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), and the Georgia Supreme Court has reiterated likewise that open judicial proceedings in civil cases are an integral part of our democratic form of government. “Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988). See generally Munoz v. American Lawyer Media LP, 236 Ga. App. 462, 464 (1999) (“The function of a free press is just as important in civil cases as in criminal cases”).

D. Post-trial proceedings

The press and public’s right of access to post-trial proceedings in Georgia criminal cases is long established, see, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576 (1982), and the Georgia Supreme Court has reiterated that open judicial proceedings in civil cases are an integral part of our democratic form of government. “Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988). See generally Munoz v. American Lawyer Media LP, 236 Ga. App. 462, 464 (1999) (“The function of a free press is just as important in civil cases as in criminal cases”).

E. Appellate proceedings

The press and public’s right of access to Georgia appellate proceedings is well established. Atlanta Journal v. Long, 258 Ga. 410, 411 (1988) (“Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.”); see also Georgia Supreme Court Rule 75 (“Proceedings in the Supreme Court may be broadcast by television and radio, recorded electronically, and photographed by still news photographers, if in compliance with the provisions of this [media] plan and the Code of Judicial Conduct”); Georgia Court of Appeals Rule 28(i), Oral Argument Open to the Public (“Counsel may move the Court to exclude the public for a good cause shown. Such motion shall be filed not later than 24 hours prior to oral argument. News media may be granted permission to photograph or videotape oral argument in accordance with the Court’s standing order regarding media in the courtroom.”).

VI. Access to civil records

In the state courts of Georgia, “the public and the press have traditionally enjoyed a right of access to court records.” Atlanta Journal v. Long, 258 Ga. 410, 411 (1988) (“Public access protects litigants both present and future . . . . Our system abhors star chamber proceedings with good reason. Like a candle, court records hidden under a bushel make scant contribution to their purpose.”).

A. In general

In Georgia, the presumption that the public will have access to all court records is incorporated in Uniform Superior Court Rule 21. “The aim of this presumption is to ensure that the public will continue to enjoy its traditional right of access to judicial records, except in cases of clear necessity. To this end, the presumptive right of access includes pre-judgment records in civil cases, and begins when a judicial document is filed.” Atlanta Journal v. Long, 258 Ga. 410, 413–14 (1988). See also Uniform Superior Court Rule 36.16, Electronic Filing at D (“An electronically filed document is presumed filed upon its receipt by the electronic filing service provider….”).

Rule 21 sets forth very specific and stringent procedures that must be followed before court records may be withheld from the public. See In re Motion of the Atlanta Journal-Constitution, 271 Ga. 436, 437 (1999) (“Superior courts may restrict or prohibit access to court records only if they do so in compliance with the requirements of Rule 21.”). The sealing of court files requires the submission of a motion setting forth the legal and evidentiary grounds for the relief sought. Second, the court must conduct a hearing on the motion where all interested parties, including the public, may be heard. Third, any order sealing court documents must identify the specific parts of the court’s file to which the order applies and delineated the “nature and duration” of the limits on public access. Finally, “[a]n order limiting access shall not be granted except upon a finding that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.” Rule 21.1-21.2; see Atlanta Journal v. Long, 258 Ga. 410, 413 (1988). There is a “presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.” Id. at 413. The trial court must “weigh the harm to the privacy interest of that party from not sealing the pre-judgment documents against the harm to the public interest from sealing the documents. Before sealing the documents, the court must conclude that the former clearly outweighs the latter.” Id. at 414.

If the specific procedures articulated in Rule 21 are not complied with, then the order sealing documents must be reversed. See BankWest, Inc. v. Oxendine, 266 Ga. App. 771 (2004) (reversing an order sealing certain documents because the judge failed to make a finding of fact that privacy concerns outweighed the public interest in access); In re Motion of the Atlanta-Journal-Constitution, 271 Ga. 436, 436–38 (1999) (holding that if a trial court fails to hold a hearing on whether to seal a record or fails to make findings of fact concerning whether the privacy interests at stake outweigh the public’s interest in access to records, an order sealing a record must be reversed on appeal); Wall v. Thurman, 283 Ga. 533, 535 (2008) (“Because the trial court failed to hold a hearing and did not make findings of fact regarding the balancing of public and private interests, we conclude that the trail court erred in sealing the record.”).

B. Dockets

Dockets are publicly available in Georgia. Georgia has no single statewide system for electronically accessing court dockets but many courts—including the Supreme Court, the Court of Appeals and many trial courts—do provide such access online via their own website or that of an authorized private vendor.

C. Discovery materials

D. Pre-trial motions and records

Uniform Superior Court Rule 21 provides that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” In one of its first decisions involving Rule 21, the Supreme Court held that the public’s “presumptive right of access” to all court records “includes pre-judgment records in civil cases, and begins when a judicial document is filed.” Atlanta Journal v. Long, 258 Ga. 410 (1988) (reversing trial court’s order sealing certain records where the parties sought to shield public access to virtually all of the pre-judgment records, including the complaint, answers, pre-trial order, discovery and motion for adjudication on the merits and briefs); see also BankWest, Inc. v. Oxendine, 266 Ga. App. 771, 778 (2004) (sealing of a summary judgment transcript reversed).

E. Trial records

Uniform Superior Court Rule 21 provides that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth below.” “Superior courts may restrict or prohibit access to court records only if they do so in compliance with the requirements of Rule 21.” In re Motion of the Atlanta-Journal-Constitution, 271 Ga. 436, 437 (1988); see also Green v. Drinnon Inc., 262 Ga. 264, 265 (1992) (affirming an order to produce to newspaper official court reporter’s tape of comments from the bench that were recorded while court was in session); Undisclosed LLC v. State, 807 S.E.2d 393 (Ga. 2017) (a court reporter’s tape of proceedings may not be accessible if there is a filed transcript). See generally Munoz v. Am. Lawyer Media, L.P., 236 Ga. App. 462, 464 (1999) (“Photographic or other exhibits, and a trial record’s printed text, are equally open to public inspection”). The public’s right of access to court exhibits is reinforced by the Georgia Open Records Act, which specifically requires public access to court exhibits by expressly providing that the custodian of such exhibits “shall, upon request” make a copy of them available to the public. O.C.G.A. § 50-18-72(c).

F. Settlement records

Settlement agreements filed with a court are inherently public documents and are available for public inspection in accordance with Rule 21 unless the harm otherwise resulting to a person’s privacy interest clearly outweighs the public interest. Atlanta Journal v. Long, 258 Ga. 410, 415 (1988). In Long the Supreme Court of Georgia rejected the argument that the public interest in promoting private settlements before trial justifies limiting public access to pre-judgment court records. See alsoCity of Helen v. White County News, 1996 WL 787416, 25 Media L. Rep. 1123 (White County Super. Ct. 1996) (settlement documents relating to police chief’s civil rights suit against city are public records under state open records act; confidentiality provision is void as against public policy).

H. Appellate records

I. Other civil court records issues

Georgia’s non-unified court system currently has no single statewide system for electronically accessing court dockets and records but many courts—including the Supreme Court, the Court of Appeals and many trial courts—do provide such access online via their own website or that of an authorized private vendor.

VII. Jury and grand jury access

No presumptive right of public access attaches to jury and grand jury deliberations proper. However, proceedings regarding the selection and administration of juries and grand juries are presumptively open.

A. Access to voir dire

The press and public have a right of access to voir dire proceedings. See, e.g., Blevins v. State, 220 Ga. 720 (1965) (“The requirement that juries must be drawn in open court is a safeguard or guarantee against secret or Star Chamber court proceedings; it is a procedure which enables the public to observe the conduct of the judge in drawing juries and thus prevent any possible corruption or suspicion of corruption in this vital part of our jury system.”). See generally Presley v. Georgia, 558 U.S. 209 (2010) (“The Supreme Court of Georgia was correct in assuming that the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.”). “[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1884). But “such circumstances will be rare, however, and the balance of interests must be struck with special care.” Id. “Trial courts are obligated to take every reasonable measure to accommodate public attendance.” Presley, 558 U.S. at 215.

B. Juror identities, questionnaires and other records

C. Grand jury proceedings and records

Traditionally in Georgia, the public has no First Amendment right of access to grand jury proceedings and records, since such proceedings have been historically and presumptively secret. Members of a grand jury in Georgia take a statutorily-prescribed oath to keep deliberations of the grand jury secret. O.C.G.A. § 15-12-67(b). A stenographer attending grand jury proceedings is required to take an oath to keep secret all things and matters learned while in attendance upon the grand jury and is incompetent to testify concerning any matter learned while in attendance upon the grand jury. O.C.G.A. § 15-12-83. As a matter of public policy, admissions and communications among grand jurors are excluded as evidence. O.C.G.A. § 15-12-73. Documents and recorded testimony received by a grand jury are not subject to public access. In re Gwinnett Cty. Grand Jury, 284 Ga. 510, 512 (2008).

However, proceedings ancillary to a grand jury may not be closed without meeting the exacting closure standards established by the Supreme Court of Georgia in R.W. Page Corp v. Lumpkin, 249 Ga. 576 (1982). Thus, in Zugar v. State, 194 Ga. 285, 289–91 (1942), in requiring that grand jury indictments be returned in open court, the Georgia Supreme Court declared that:

It is a fundamental part of our judicial system that the general public be permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted . . . . It is not enough to know that in this State there is hardly a chance that bogus indictments for personal spite will be filed in our courts. The preservation of the honor and purity of the courts, the confidence and respect of the public in those courts, and the good name of the citizens must not be left to chance.

Id. at 291; see also State v. Brown, 293 Ga. 493 (2013) (same).

When a grand jury is engaged in its civil duty of inspecting or investigating a county office, O.C.G.A. § 15-12-71(b)(3) authorizes the grand jury to “prepare reports or issue presentments” and O.C.G.A. § 15-12-80 authorizes the grand jury “to recommend to the court the publication of the whole or any part of their general presentments and to prescribe the manner of publication” and “[w]hen the recommendation is made, the judge shall order the publication as recommended.” In re Gwinnett Cty. Grand Jury, 284 Ga. at 511.

D. Interviewing jurors

VIII. Proceedings involving minors

Georgia has a long tradition of permissive public access to juvenile proceedings, beginning with a 1984 decision of the Georgia Supreme Court. In Florida Publ’g Co. v. Morgan, 253 Ga. 467 (1984), the Court concluded that:

consistent with the Constitution, the state may create a rule that delinquency, deprivation, and unruliness hearings in juvenile court are presumed closed to the public (and press). However, for constitutional reasons, this presumption cannot be conclusive. The public and/or press must be given an opportunity to show that the state’s or juveniles’ interest in a closed hearing is not “overriding” or “compelling.”

…

We, therefore, hold that where a member of the public or press institutes a judicial proceeding to require the opening of a juvenile hearing, the court must in an expeditious manner give the public or press an opportunity to present evidence and argument to show that the state’s or juveniles’ interest in a closed hearing is overridden by the public’s interest in a public hearing. The juvenile court’s ruling on this question must be composed of “findings in writing articulate enough for appellate review.”

Id. at 472.

Effective 2014, the state promulgated a new juvenile code, comprehensively rewriting many of the former code’s provisions, including those pertaining to public access. See O.C.G.A. §§ 15-11-700–15-11-710. The new code affords a presumptive statutory right of public access to dependency proceedings, O.C.G.A. § 15-11-700, and records, O.C.G.A. § 15-11-704(b).

A. Delinquency

Georgia’s juvenile code affords a presumptive statutory right of public access to records and proceedings concerning an “adjudicatory hearing involving an allegation of delinquency brought in the interest of any child who has previously been adjudicated for committing a delinquent act; provided, however, the court shall close any delinquency hearing on an allegation of sexual assault or any delinquency hearing at which any party expects to introduce substantial evidence related to matters of dependency.” O.C.G.A. §§ 15-11-700(b)(2); 15-11-704(b).

In the case of other delinquency proceedings, the Georgia Supreme Court has held that, based on constitutional considerations, the public and/or press must be given an opportunity to show that the state’s or juveniles’ interest in a closed hearing is not overriding or compelling, in which case access must be granted. Florida Publ’g Co. v. Morgan, 253 Ga. 467 (1984).

In the case of other proceedings involving minors, the Georgia Supreme Court has held that, based on constitutional considerations, the public and/or press must be given an opportunity to show that the state’s or juveniles’ interest in a closed hearing is not overriding or compelling, in which case access must be granted. Florida Publ’g Co. v. Morgan, 253 Ga. 467 (1984).

D. Prohibitions on photographing or identifying juveniles

As a matter of statute, Georgia courts may permit electronic recording, transmission, videotaping, motion picture and still photography of judicial proceedings involving minors. O.C.G.A. § 15-11-700(h). The Georgia juvenile code purports to authorize judges to “order the media not to release identifying information concerning any child or family members or foster parent or other caretaker of a child involved in hearings open to the public.” O.C.G.A. § 15-11-700(i).

IX. Special proceedings

The Georgia Supreme Court has declared broadly that, “This court has sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings because it is believed that open courtrooms are a sine qua non of an effective and respected judicial system which, in turn, is one of the principal cornerstones of a free society.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578 (1982); see alsoAtlanta Journal v. Long, 258 Ga. 410, 411 (1988) (“Public access protects litigants both present and future, because justice faces its gravest threat when courts dispense it secretly. Our system abhors star chamber proceedings with good reason.”).

A. Tribal Courts in the jurisdiction

B. Probate

All Georgia probate court records are public unless public access is limited by law or the procedure set forth in Uniform Probate Court Rule 4. Rule 4 requires a motion and provides that an order limiting access shall not be granted except upon a finding that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest. Further, any order of limitation entered by the court must specify the part of the file to which access is limited, the nature, and duration of the limitation, and the reason for limitation. SeeIn Re: Motion of the Atlanta Journal Constitution, 271 Ga. 436, 438 (1999) (“In an order sealing a court record, a trial court must set forth factual findings that explain how a privacy invasion that may be suffered by a party or parties seeking to seal a record differs from the type of privacy invasion that is suffered by all parties in civil suits. Otherwise, the trial court is not justified in closing the record from public scrutiny.”); see also Sharpton v. Hall, 296 Ga. App. 251 (2009) (holding that the probate court did not abuse its discretion in unsealing records of guardianship and allowing estate administrator access to them).

C. Competency and commitment proceedings

D. Attorney and judicial discipline

In the case of attorneys, the Supreme Court of Georgia retains ultimate authority to regulate the legal profession, but the State Bar of Georgia’s Office of the General Counsel serves as the Court’s arm to investigate and prosecute claims that a lawyer has violated the ethics rules. The State Bar will not confirm or deny that a grievance has been filed against an attorney, that an attorney is being investigated for an alleged violation of the Georgia Rules of Professional Conduct, or that an attorney has received private discipline. However, the State Bar’s public online member directory includes information about an attorney’s public disciplinary history.

In the case of judges, the Judicial Qualifications Commission was created in 1972 to conduct investigations and hearings with respect to complaints of ethical misconduct by Georgia judges and is also authorized to issue Advisory Opinions regarding appropriate judicial conduct. Under the Commission’s rules, which were revamped in 2017, confidentiality is the norm in the initial stages of a disciplinary case and if the complaint is dismissed but “[o]nce the formal charges have been filed and served upon the judge, the policy emphasis shifts from confidentiality to the public’s right to know.” Official Commentary, Rule 11, Rules of the Judicial Qualifications Commission of Georgia (available at https://www.gasupreme.us/wp-content/uploads/2017/11/JQC_Final_Rules_Order.pdf).

E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

The right of the media to intervene in legal actions, where their newsgathering rights are burdened by court orders, is well established in Georgia. See, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 581 (1982); Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170 (2004) (holding that the Atlanta Journal-Constitution and WSB-TV had standing to challenge a gag order entered against trial participants and witnesses).

B. Gag orders on the press

Pursuant to well-established law under the First Amendment to the United States Constitution and the Georgia Constitution, the entry of an order restricting speech about litigation can only be supported where: (1) record evidence establishes a serious, imminent threat to the administration of justice; and (2) the order is narrowly drawn to minimize that threat. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976). The Supreme Court of Georgia has affirmed the demanding standard articulated Nebraska Press must be met before a gag order may be entered. In R.W. Page Corp, 249 Ga. 576 (1982), the Supreme Court made it clear that Georgia courts “ha[d] sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings.” In reversing the closure of pretrial proceedings in the case, the court referenced Nebraska Press as the controlling authority on gag orders.

Even when confronted with a “carefully and precisely drawn” order, the Supreme Court of Georgia held in Ga. Gazette Publ’g Co. v. Ramsey, 248 Ga. 528 (1981), that a gag order in a civil case was constitutionally prohibited as a matter of law. In Ramsey, the trial court had issued an order preventing the defendant newspaper, in an invasion of privacy case, from publishing information obtained in discovery without prior approval by the court. Although acknowledging that the trial court’s order was “carefully and precisely drawn,” the court ruled it facially invalid under the Georgia Constitution as an “unwarranted [prior] restraint upon the newspaper’s liberty of speech and of the press.” Id. at 530.

In criminal cases, the Supreme Court of Georgia has repeatedly emphasized that the issue a trial court must consider with respect to a defendant’s rights to a fair trial is not publicity, but prejudice. In Miller v. State, 275 Ga. 730, 735 (2002), the court held that: “Even in cases of widespread pretrial publicity, situations where such publicity has rendered a trial setting inherently prejudicial are extremely rare. . . . We are inclined to agree with those prospective jurors who reported during voir dire that the pretrial publicity they had seen tended to make them feel empathy for both appellant and [the victim].” “‘A conclusory representation that publicity might hamper a defendant’s right to a fair trial is insufficient to overcome the protections of the First Amendment.’” Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170–71 (2004) (quotingUnited States v. Noriega, 917 F.2d 1543, 1549 (11th Cir. 1990)).

C. Gag orders on participants

The Supreme Court of Georgia has repeatedly emphasized that the issue a trial court must consider with respect to a defendant’s rights to a fair trial is not publicity, but prejudice. See, e.g., Miller v. State, 275 Ga. 730, 735 (2002). Georgia courts have struck down gag orders on participants premised on insufficient findings of prejudice. See Atlanta Journal-Constitution v. State, 266 Ga. App. 168 (2004) (questioning “whether the pre-indictment publicity justified restraining the nonlawyers, i.e. the parties, experts, witnesses, and investigators”).

Pursuant to well-established law under the First Amendment to the United States Constitution and the Georgia Constitution, the entry of an order restricting speech about litigation can only be supported where: (1) record evidence establishes a serious, imminent threat to the administration of justice; and (2) the order is narrowly drawn to minimize that threat. Neb. Press Ass’n, 427 U.S. 429, 562 (1976); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, n.5 (1982) (citingNebraska Press as the controlling authority for “gag orders”). However, in Atlanta Journal-Constitution v. State, 266 Ga. App. 168 (2004), the court found that gag orders imposed against non-media parties are subject to a lower standard: “Contrary to the media’s assertions, the order under consideration cannot be classified as a prior restraint because it is not directed at the media. Accordingly, the order is not subject to the same heavy presumption against its constitutionality as an order directing the media not to broadcast a confession or televise a trial. Insofar as it restricts extrajudicial comments by trial participants, the order is evaluated under the less stringent standard . . . the ‘substantial likelihood of material prejudice’ standard.’” (citingGentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991).

D. Interviewing judges

Nothing prohibits the interviewing of judges. In a report adopted by the Georgia Judicial Council and State Bar, a state judicial commission recently recommended that public understanding and support of the judicial system should be encouraged, in part by training “judges to educate the public about the role of the courts and the importance of an independent judiciary” and by encouraging “the Institute of Continuing Judicial Education to instruct judges on how to do so consistent with codes of judicial conduct.” See Embracing the Courts of the Future: Final Report of the Next Generation Courts Commission (March 2014) at 22; id. at 21–22 (“Courts at all levels in Georgia must promote long-term public confidence and support of the judicial system by demonstrating and practicing transparency, establishing as one of their core functions the effective provision of convenient and timely public access to court procedures, schedules, records and proceedings.”).

XI. Other issues

A. Interests often cited in opposing a presumption of access

While there is a presumption of access, that presumption may in theory be overcome “by evidence constituting ‘clear and convincing proof’ that no means available other than closure of the hearing will serve to protect the right of the movant.” R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 580 (1982).

Generally, the desires of the witnesses do not affect whether a proceeding will be closed. See Morris Communications LLC v. Griffin, 279 Ga. 735 (2005). However, the Court of Appeals of Georgia in Lowe v. State, 141 Ga. App. 433, 436–37 (1977), found no abuse of discretion of the trial court in its exclusion of spectators during the testimony of one witness who was in “fear of possible harm” because of testimony to be given.

State courts in Georgia have found that in child molestation cases closing the court to protect a young victim, while they testify, may be justified based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. See Goldstein v. State, 283 Ga. App. 1 (2006) (holding that although there is a strong presumption of openness, the trial court’s partial closure to protect the young victim was justified); Mullis v. State, 292 Ga. App. 218 (Ga. Ct. App. 2008) (finding that in light of the victim’s fragile emotional and psychological history and the fact that no objection was forthcoming, the trial court did not deprive the defendant of his Sixth Amendment right to a public trial when it cleared the courtroom during the victim’s testimony).

In enforcing the State’s commitment to open courtrooms and court records, the Supreme Court of Georgia has consistently emphasized that embarrassment and reputational harm are not sufficient interests to justify closure. See, e.g., Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (reversing a trial court order sealing case file after settlement of lawsuit claiming sexual abuse by Catholic Diocese of Savannah: “we hold that the privacy interests of appellees in the pre-judgment records of this civil case do not clearly outweigh the public interest in open access to those records.”). In reversing closure in In re Motion of the Atlanta Journal-Constitution, 271 Ga. 436 (1999), the Georgia Supreme Court held that despite the fact that those involved in judicial proceedings often “experience an invasion of privacy and resulting embarrassment, that fact alone does not permit trial courts to routinely seal court records.”

The court must distinguish the privacy interest in that particular case from the general desire to avoid embarrassment that would otherwise lead all parties to a lawsuit to ask for closed records. See, e.g., In re Motion of the Atlanta Journal-Constitution, 271 Ga. 436, 437 (1999) (requiring a motion, a hearing, and a trial court to make specific, on the record findings before sealing records); see also Atlanta Journal v. Long, 258 Ga. 410, 414 (1988) (“The court’s findings and conclusions do not explain how the embarrassment the appellees may suffer differs in degree or kind from that of parties in other civil suits.”).

B. Cameras and other technology in the courtroom

The Georgia Supreme Court has long made clear that camera and electronic access is an essential component of Georgia’s constitutional commitment to an open court system. See, e.g., Morris Communications, LLC v. Griffin, 279 Ga. 735 (2005) (reversing a trial court order that denied camera access to criminal trial and stating that “a trial court should bear in mind this State’s policy favoring open judicial proceedings”); Georgia Television Co. v. Napper, 258 Ga. 68 (1988) (trial court erred in denying camera access to a hearing based on the court’s belief that the hearing was not newsworthy and that access would inhibit the Socratic dialogue beneficial to the free exchange of ideas between court and counsel).

Uniform Superior Court Rule 22, which is repeated in the uniform rules of the state’s other classes of courts, generally permits camera and other electronic access upon timely request absent specific findings, after hearing, of countervailing likelihood of harm. See also O.C.G.A. §15-1-10.1. See generally McLaurin v. Ott, 327 Ga. App. 488 (2014) (although the decision whether to allow electronic and photographic coverage of a trial is within the discretion of the trial court, if a trial court denies such coverage, there must be a factual basis in the record that supports the denial) (reversing a denial of law student request to videotape criminal calendar proceedings).

In 2018, the Georgia Supreme Court updated Rule 22 “to reflect developments over the last two decades in recording technology, in the news media, and, most significantly, in recording devices—namely, the smart phones and other mobile computers with recording capabilities that today are routinely carried and used by most people in this state.” The Court added a preamble, stating that, “Open courtrooms are in indispensable element of an effective and respected judicial system. It is the policy of Georgia’s courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media who report on the proceedings to the public.” The Court cautioned, however, that, “This must be done . . . while protecting the legal rights of the participants in the proceedings and ensuring appropriate security and decorum.” Uniform Superior Court Rule 22(A).

Under the updated rule, courtroom spectators, including news media, who seek to record a court proceeding must, as in the past, make a special request of the court for permission to do so, triggering notice requirements and a possible hearing. See Rule 22(F). See also Rule 22(G) (“A properly submitted request for recording should generally be approved . . . .”).

Whether to allow electronic devices to be used by spectators, including news media, in the courtroom for non-recording purposes is up to each trial judge. See Rule 22(C)(3). The rule permits but does not require a judge to “freely” allow such use “when he or she believes [it] would not be disruptive or distracting and is not otherwise contrary to the administration of justice.” The rule provides that when such is allowed, devices “must be silenced and may not be used to make or receive telephone calls or for other audible functions without express permission from the judge.”

C. Tips for covering courts in the jurisdiction

The Georgia state court system has five classes of trial-level courts: the magistrate, probate, juvenile, state and superior courts. In addition, there are approximately 350 municipal courts operating locally. There are two appellate level courts: the Supreme Court and the Court of Appeals. The Judicial Council of Georgia and its Administrative Office of the Courts provides useful information at www.georgiacourts.gov.

Georgia courts are increasingly employing public information officers who are available to assist with media access and other issues. The Georgia Supreme Court’s is particularly effective, providing publicly accessible information about not only past but forthcoming decisions via the Court’s website at www.gasupreme.us. E.g., if an opinion is to issue on Monday, a list of the cases will be posted on Friday by 2:00 p.m. Summaries of noteworthy opinions are released contemporaneously with the opinions themselves.

The Georgia First Amendment Foundation is dedicated to advancing open government in Georgia, including to the state’s courts, and makes resources available for this purpose at www.gfaf.org.